Freedom of Expression

Section 2 of the Charter: “Everyone has the following fundamental freedoms: (b) freedom of thought, belief, opinion and expression,  including freedom of the press and other media of communication”

Freedom of expression is very broad; it protects any activity that conveys or attempts to convey meaning (except violent activity). How valuable the expression is to society does not determine whether it is protected, but may be relevant in determining whether an infringement of freedom of expression should be justified under section 1. Subsequently, most of the case law dealing with freedom of expression centers on section 1. The test used in establishing a violation of freedom of expression was first used in Irwin Toy Ltd. v. Quebec (Attorney General):

1.    To determine whether there is a violation of s. 2(b), the court must ask:

a.    Is there expression (does the activity convey meaning)?
b.    If there is, and the expression is not violent, the court must then ask EITHER

i.    Was the purpose of the government action to restrict expression? OR
ii.    Was the effect of the government action to restrict expression?

2.    If it is a violation of s. 2(b), you must then determine whether it is justified under section 1

Ford v. Quebec (Attorney General) – Supreme Court of Canada, 1988
The Charter of the French Language in Quebec stipulated that only French could be used on public signs, posters, and commercial advertisements. The respondents sought a declaration that this went against both the Charter and the Quebec Charter. The SCC ruled that expressing oneself in the language of one’s choice and commercial expression are both protected under freedom of expression.  The provisions therefore contravened the Charter and the Quebec Charter and could not be justified under section 1.

Irwin Toy Ltd. v. Quebec (Attorney General) – Supreme Court of Canada, 1989
Irwin Toy Ltd. challenged Quebec legislation that prohibited commercial advertising aimed at children under the age of 13.  The SCC found that the legislation infringed freedom of expression. It held, however, that this infringement was justified under section 1 because it was aimed at protecting children, a group that is especially vulnerable to commercial manipulation. The SCC, in this case, developed the framework to determine whether there is a violation freedom of expression (outlined above).

R. v. Keegstra – Supreme Court of Canada, 1990
Keegstra was an Alberta high school teacher criminally charged because of anti-Semitic statements he made to his students. The SCC ruled that communication intended to promote hatred against a group of people is protected under s. 2(b), and Keegstra’s freedom of expression was therefore infringed. Nevertheless, the SCC found that this infringement was justified under section 1 because of the importance of preventing harm flowing from hate propaganda.

R. v. Butler – Supreme Court of Canada, 1992
Butler was criminally charged with possessing, selling, and exposing obscene material to the public. The SCC held that the legislation was a violation of freedom of expression, but was justified under section 1 because of the risk of harm to society resulting from such material. It also ruled that obscene material only captures violent, degrading, dehumanizing sex or sex with children. If the work is for an artistic, literary, or similar purpose, it may not be obscene.

R. v. Sharpe – Supreme Court of Canada, 2001
Sharpe was charged with possessing and possessing for distribution or sale of child pornography. The SCC held that criminalizing child pornography was an infringement on freedom of expression but, for the most part, was justified under section 1 due to the risk of harm to children. The SCC found, however, that child pornography was allowed in two situations because it raised little or no risk of harm to children: 1) when created and held by the accused for his own personal use alone, and 2) visual representations created by or depicting the accused that did not show unlawful sexual activity and were held by the accused for his own personal use alone.

Retail, Wholesale and Department Store Union, Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd. – Supreme Court of Canada, 2002
An injunction was granted to prohibit the union from picketing at secondary locations (i.e. retail outlets that sold the appellant’s products, homes of management personnel, etc.). The union challenged the constitutionality of the injunction. The SCC held that secondary picketing was protected under freedom of expression; therefore, it was lawful unless it involved civil wrongs (torts) or criminal conduct. In this case, picketing outside the homes of management personnel was a civil wrong; thus, the injunction preventing this was constitutional. The injunction that prohibited secondary picketing generally, however, was found unconstitutional.

Canada (Attorney General) v. JTI-Macdonald Corp. – Supreme Court of Canada, 2007
The appellant was a tobacco company challenging the Tobacco Act and the Tobacco Products Information Regulations which forbade lifestyle advertising and promotion, advertising appealing to young persons, and false or misleading advertising or promotion. The legislation also increased the size of mandatory health warnings on packaging to 50% of the display surface. The SCC found that the legislation was constitutional. While there was an infringement of freedom of expression, it was justified under section 1 as the objectives of the provisions all related to protecting the life and health of Canadians.

Saskatchewan Human Rights Commission v. William Whatcott – Supreme Court of Canada, 2013
The case dealt with the “hate-speech” provision of the Saskatchewan Human Rights Code. Whatcott had distributed four flyers criticizing the inclusion of LGBT-related materials in public education and criticizing the advertising standards of a LGBT magazine. The magazine ran classified ads allegedly designed to facilitate same-sex casual encounters between men and under-aged boys. Four individuals who received the flyers filed complaints with the Saskatchewan Human Rights Commission alleging a violation of the “hate speech” provision of the Code.

In its decision, the Supreme Court upheld and reinforced its earlier precedent set out in Taylor by upholding the constitutionality of “hate speech” provisions in human rights codes. It attempted to provide further guidance to Canadians in determining what does and does not constitute “hate” under human rights legislation and reinforced the notion that Holy Scriptures ought not to be considered hate speech and that any limits placed on religious expression must be justified and appropriate and that the threshold for doing so is a high one.